Vennard v Delorain P/L - [2010] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

Vennard v Delorain P/L [2010] QSC 190

PARTIES:

TALIA REE VENNARD

(applicant)

v

DELORAIN PTY LTD AS TRUSTEE FOR THE DELORAIN TRUST (ACN 125 370 461)

(respondent)

FILE NO/S:

SC No 3886 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

2 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2009

JUDGE:

Douglas J

ORDER:

Application dismissed with costs.

CATCHWORDS:
CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the applicant entered into a contract to purchase property – whether the applicant’s attention had been directed to a warning statement in accordance with s 365(2A)(c) of the Property Agents and Motor Dealers Act 2000 – whether the applicant was entitled to terminate the contract

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the disclosure statement provided to the applicant by the respondent did not contain services location diagrams or an exclusive use plan – whether the disclosure statement was substantially complete as required pursuant to s 213 of the Body Corporate and Community Management Act 1997 (“BCCMA”) – whether the applicant is entitled to avoid, not complete or cancel the contract

CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – DESCRIPTION OF PROPERTY AND SUBJECT MATTER OF SALE – GENERALLY –where the contract property for sale was described as “Proposed Lot 51 on proposed SP 207070, as highlighted on the Identification Plan contained in the Disclosure Documents” – where there was no proposed “SP 207070” in existence – where a “proposed building plan” was attached to the contract which included documents “intended only to represent an indicative development plan” – whether the contract clearly identified the lot to be purchased – whether the contract is void for uncertainty

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – whether the disclosure statement clearly identified the lot to be purchased as required pursuant to s 21(1)(a) of the Land Sales Act 1984 – whether the applicant is entitled to avoid, not complete or cancel the contract

CONVEYANCING –– STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OTHER MATTERS – where s 212 of the BCCMA at the relevant time provided that a contract for the sale of a lot intended to come into existence as a lot in a community titles scheme must provide that settlement must not take place earlier than 14 days after the seller advises the buyer that the scheme has been established – where the contract contained a similar, but not identical provision – whether the contract complied with s 212 – whether the applicant is entitled to cancel the avoid, not complete or cancel the contract

Body Corporate and Community Management…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 190
Decision Date: 2 June 2010

CaseChat Overview and Summary

In the matter of Vennard v Delorain P/L, the applicant, Vennard, sought to terminate a contract for the sale of property on several grounds. The respondent, Delorain, resisted the application. The dispute was heard in the Supreme Court of Victoria. The primary issues before the court were whether the applicant had been properly warned about certain aspects of the property, whether the contract contained sufficient description of the property to be enforceable, and whether the contract complied with statutory provisions regarding settlement timing.

The court considered whether the respondent had fulfilled its statutory obligations under the Property Agents and Motor Dealers Act 2000 by providing an appropriate warning statement. Additionally, the court examined whether the disclosure statement met the requirements of the Body Corporate and Community Management Act 1997, including the absence of services location diagrams and an exclusive use plan. The court also scrutinized whether the contract adequately described the property, given the absence of a proposed subdivision plan and the presence of an indicative development plan. Furthermore, the court assessed if the contract complied with statutory provisions related to the timing of settlement as stipulated under the BCCMA.

The court found that while there were deficiencies in the warning statement and the disclosure statement, these did not entitle the applicant to terminate the contract. The court also determined that the contract, despite its shortcomings in description, was not void for uncertainty because it provided a sufficient basis to identify the property. The court further held that the contract did not strictly comply with the statutory provisions regarding settlement timing, but this did not entitle the applicant to cancel the contract. The court concluded that the application should be dismissed with costs.

The court's final order was that the application was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vennard v Delorain P/L [2010] QSC 190
PARTIES:	TALIA REE VENNARD (applicant) v DELORAIN PTY LTD AS TRUSTEE FOR THE DELORAIN TRUST (ACN 125 370 461) (respondent)
FILE NO/S:	SC No 3886 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	2 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2009
JUDGE:	Douglas J
ORDER:	Application dismissed with costs.
CATCHWORDS:	CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the applicant entered into a contract to purchase property – whether the applicant’s attention had been directed to a warning statement in accordance with s 365(2A)(c) of the Property Agents and Motor Dealers Act 2000 – whether the applicant was entitled to terminate the contract CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the disclosure statement provided to the applicant by the respondent did not contain services location diagrams or an exclusive use plan – whether the disclosure statement was substantially complete as required pursuant to s 213 of the Body Corporate and Community Management Act 1997 (“BCCMA”) – whether the applicant is entitled to avoid, not complete or cancel the contract CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – DESCRIPTION OF PROPERTY AND SUBJECT MATTER OF SALE – GENERALLY –where the contract property for sale was described as “Proposed Lot 51 on proposed SP 207070, as highlighted on the Identification Plan contained in the Disclosure Documents” – where there was no proposed “SP 207070” in existence – where a “proposed building plan” was attached to the contract which included documents “intended only to represent an indicative development plan” – whether the contract clearly identified the lot to be purchased – whether the contract is void for uncertainty CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – whether the disclosure statement clearly identified the lot to be purchased as required pursuant to s 21(1)(a) of the Land Sales Act 1984 – whether the applicant is entitled to avoid, not complete or cancel the contract CONVEYANCING –– STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OTHER MATTERS – where s 212 of the BCCMA at the relevant time provided that a contract for the sale of a lot intended to come into existence as a lot in a community titles scheme must provide that settlement must not take place earlier than 14 days after the seller advises the buyer that the scheme has been established – where the contract contained a similar, but not identical provision – whether the contract complied with s 212 – whether the applicant is entitled to cancel the avoid, not complete or cancel the contract Body Corporate and Community Management…